Like perennial plants, some issues continue to repeatedly crop up; once planted, they keep showing up in various question-forms. The one which needs to be addressed, again, is the “1-year” issue: there are actually two (2) questions which keep resurrecting themselves: A. Filing a disability retirement application within 1 year of separation from service, and B. A medical condition which must last for a minimum of one year.

As to the former: The statute of limitations begins to toll when a person has been officially separated from Federal Service. This means that the Agency must take you off of the Federal rolls. If you continue to receive a paycheck, you are likely not separated (unless, of course, it is some form of a severance paycheck); if you receive a paycheck with “0-balances”, you are still not likely separated. If you are injured and you haven’t worked for a year, but you have not received notification that you have been separated from Federal Service, the 1-year mark has likely not begun. On the other hand, if your SF-50 or PS Form 50 states that you are separated, then you are separated. At that point, you have one (1) year to file your Federal Disability Retirement application.

As to the latter (Issue “B” herein): In most cases, it is a prospective issue. It doesn’t mean that you must “have been” medically unable to work for a year; it doesn’t mean that you have to wait around for a year, out of work and penniless, for a year; it doesn’t mean that you must be on OWCP or on LWOP or on sick leave for a year — instead, it means that your medical condition must last for at least a year. In other words, as is the case with most medical conditions, after a couple of months, your doctor should have an opinion — a “prognosis” — of how long your medical condition which impacts your ability to perform the essential elements of your job, will likely last, within reasonable medical certainty. Indeed, since the Federal Disability Retirement process often takes from 8 – 10 months (from start to finish) to obtain an approval, by the end of the process, the full year will likely have occurred anyway. In other words, you don’t need to wait around for a year to show that you can’t perform the essential elements of your job; indeed, that would be foolish.

Often, cases are mishandled not because of the “present” mistake, but because the case was never prepared for the “long-term” event. Let me elaborate and explain. Obviously, an applicant for disability retirement benefits under FERS & CSRS wants to win the case at the earliest stage of the process. The attorney who is handling any such disability retirement case, similarly, would like to “win” the case at the earliest stage possible. However, sometimes that is simply not going to be the case.

In an initial denial, it is often important to not only address the case for the Reconsideration Stage, but also to prepare the case for the next stage — the Merit Systems Protection Board (and, similarly, in preparing an application for Disability Retirement, it is important to prepare such an application not only for the initial review at OPM, but also for the Reconsideration Stage). By this, I mean that, because there is at least a “possibility” that the disability retirement application will be denied again at the Reconsideration Stage, it is important to point out the deficiencies, the lack of clarity, the inadequate reasoning, the outright lies and mis-statements which the Office of Personnel Management may have engaged in as part of the “Discussion” Section of the denial letter. Often, while OPM may give some “lip-service” to make it appear as if your case was thoroughly reviewed, a closer reading (on second thought, it need not even be a closer reading) clearly shows that OPM did a shabby job in denying a case. It is what I ascribe as OPM’s “generic denial” — a denial so devoid of any particularity or care as to reveal a complete lack of proper administrative review of the case. Such lack of proper administrative review is what needs to be shown; it needs to be shown because, if OPM denies the case again, then it is advantageous to the applicant to have the Administrative Law Judge at the Merit Systems Protection Board see that he will be hearing a case which may not have been necessary — but for the lack of diligence on the part of OPM.

Of interest is what to do when a Social Security filing for disability benefits has been approved prior to the FERS/CSRS disability retirement application being approved. This is a rarity, and indeed, it should logically be that way: for Social Security disability requires a higher standard of (essentially) “total disability”; while the criteria for approval under FERS/CSRS is that of an “inability to perform the essential elements” of a particular job — meaning, in essence, that an individual is no longer a good fit for a particular type of job, but could certainly be productive in some other capacity of employment.

The cases at the Merit System Protection Board which have addressed this issue have been fairly consistent. An approval in and of itself will not necessarily help a FERS/CSRS application; as with the application process itself, the applicant has the preponderance of the evidence of proving the relevance of the approved Social Security filing. I am often asked whether, in a denial of an SSA disability application, where the decision by the Social Security Administration states that, while SSA acknowledges that the applicant is unable to perform his or her current employment because of the medical condition, yet the applicant for SSA disability benefits is denied because he or she may engage in other productive employment — whether such a statement in the denial (that SSA acknowledges the applicant’s inability to perform his or her current job) should be forwarded to OPM. My answer is that it should not be, because it is not relevant to OPM’s criteria for making a determination.

As to the two most important questions: 1. If a Social Security Disability application is approved, what needs to be sent to OPM, and 2. If Social Security’s determination doesn’t provide the necessary language to be relevant for forwarding to OPM, what can take its place? As to these two questions, I will be addressing each in a blog to be written in the very near future.

Seven False Myths about OPM Disability Retirement

1) I have to be totally disabled to get Postal or Federal disability retirement.
False: You are eligible for disability retirement so long as you are unable to perform one or more of the essential elements of your job. Thus, it is a much lower standard of disability.

2) My injury or illness has to be job-related.
False: You can get disability even if your condition is not work related. If your medical condition impacts your ability to perform any of the core elements of your job, you are eligible, regardless of how or where your condition occurred.

3) I have to quit my federal job first to get disability.
False: In most cases, you can apply while continuing to work at your present job, to the extent you are able.

4) I can't get disability if I suffer from a mental or nervous condition.
False: If your condition affects your job performance, you can still qualify. Psychiatric conditions are treated no differently from physical conditions.

5) Disability retirement is approved by DOL Workers Comp.
False: It's the Office of Personnel Management (OPM) the federal agency that administers and approves disability for employees at the US Postal Service or other federal agencies.

6) I can wait for OPM disability retirement for many years after separation.
False: You only have one year from the date of separation from service - otherwise, you lose your right forever.

7) If I get disability retirement, I won't be able to apply for Scheduled Award (SA).
False: You can get a Scheduled Award under the rules of OWCP even after you get approved for OPM disability retirement.